Michael Resureccion v. Eric Holder, Jr. , 431 F. App'x 573 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                            MAY 05 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    MICHAEL SANGLANG                                 No. 09-72605
    RESURECCION, a.k.a. Michael
    Sangalang Resurreccion,                          Agency No. A077-313-252
    Petitioner,
    MEMORANDUM *
    v.
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted April 20, 2011 **
    Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.
    Michael Sanglang Resureccion, a native and citizen of the Philippines,
    petitions for review of the Board of Immigration Appeals’ (“BIA”) order
    dismissing his appeal from an immigration judge’s decision denying his motion to
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    reopen deportation proceedings conducted in absentia and denying his motion to
    remand. We have jurisdiction under 
    8 U.S.C. § 1252
    . We review for abuse of
    discretion the denial of a motion to reopen, Iturribarria v. INS, 
    321 F.3d 889
    , 894
    (9th Cir. 2003), and we deny the petition for review.
    The agency did not abuse its discretion in denying Resureccion’s motion to
    reopen as untimely where he failed to show that he acted with the due diligence
    required to warrant equitable tolling of the filing deadline. See 
    8 C.F.R. § 1003.23
    (b)(4)(iii)(A)(1) (motion to reopen must be filed within 180 days of
    deportation order entered in absentia); Iturribarria, 
    321 F.3d at 897
     (a petitioner
    may obtain equitable tolling based on ineffective assistance of counsel as long as
    he “act[ed] with due diligence in discovering the deception, fraud, or error”).
    Because the agency’s conclusion that Resureccion failed to act with due
    diligence upon discovering that he had been ordered removed in absentia is
    dispositive, it was unnecessary for the BIA to remand his case for consideration of
    whether Resureccion’s second counsel provided him with ineffective assistance.
    In light of our disposition, we need not address whether Resureccion has
    demonstrated sufficient compliance with Matter of Lozada, 
    19 I. & N. Dec. 637
    (BIA 1988).
    PETITION FOR REVIEW DENIED.
    2                                       09-72605
    

Document Info

Docket Number: 09-72605

Citation Numbers: 431 F. App'x 573

Judges: Paez, Rymer, Thomas

Filed Date: 5/5/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023